Relist Watch

John Elwood reviews Tuesday’s relists.

I’m afraid to say that the start of the Supreme Court’s 2020-21 term is being overshadowed by a media circus. As easy as it is to get caught up in the favorable press and global spotlight, such events run the risk of developing partisan overtones. And at bottom, there are no winners in such undignified spectacles.

Rest assured that we at Relist Watch are ignoring such things and keeping our eyes firmly on what really matters, the little-noticed minutiae of a single court’s docket. We were rewarded for our vigilance this week, as the court’s first relists yielded three grants and one hour of argument, presumably in February 2021, about the Constitution’s appointment clause — another in a recent string of separation-of-powers cases. Unfortunately, the other relists didn’t fare as well; the court unceremoniously denied review in a number of closely watched cases, including cases involving a contested seizure of firearms, another asking whether state anti-SLAPP statutes apply in federal diversity cases, and one involving a claim that prison officials violated the Eighth Amendment by refusing to provide a transgender prisoner with gender reassignment surgery. Justice Samuel Alito, joined by Justice Clarence Thomas, filed a one-sentence dissent in the last, arguing that the case had become moot and that the decision under review should be vacated.

Now we’re all caught up. This week we go from 15 new relists to just two: What a difference a week makes. Trump v. Sierra Club, 20-138, involves a challenge to President Donald Trump’s decision to repurpose defense funds to build a border wall. The U.S. Court of Appeals for the 9th Circuit held that the administration lacks the power to spend more than Congress already allocated for border security. In July, the Supreme Court declined to lift a stay that has allowed the federal government to continue to spend funds on construction of the wall while the legal challenge continues.

That brings us to Lange v. California, 20-18. It may teach a new method for finding cert-worthy circuit splits: Find a case where the court finds qualified immunity warranted because of confusion in the law, and then file a follow-on petition. In Stanton v. Sims, the Supreme Court summarily reversed a 9th Circuit decision holding that police had violated the Constitution by following a suspect into the curtilage of her home because she’d only committed the minor offense of disobeying a police officer. In summarily reversing the 9th Circuit, the court there noted that the “federal and state courts of last resort around the Nation” are “sharply divided” on the question of “whether an officer with probable cause to arrest a suspect for a misdemeanor may enter a home without a warrant while in hot pursuit of that suspect.” That legal issue is now back at the court in Lange, and we should know soon whether the court intends to resolve it.

That’s all for now. After the conference this Friday, we have a week off. I propose that we spend that time contemplating how much better public discourse was in the old days. Until then, stay safe!

New Relists

Lange v. California, 20-18
Issue: Whether the pursuit of a person whom a police officer has probable cause to believe has committed a misdemeanor categorically qualifies as an exigent circumstance sufficient to allow the officer to enter a home without a warrant.
(relisted after the Oct. 9 conference)

Trump v. Sierra Club, 20-138
Issues: (1) Whether respondents have a cognizable cause of action to obtain review of the acting secretary of defense’s compliance with a proviso in Section 8005 of the Department of Defense Appropriations Act that the secretary’s authority to transfer funds internally between DOD appropriations accounts “may not be used unless for higher priority items, based on unforeseen military requirements, than those for which originally appropriated and in no case where the item for which funds are requested has been denied by the Congress”; and (2) whether in 2019 the acting secretary exceeded his statutory authority under Section 8005 by transferring approximately $2.5 billion in response to a request from the Department of Homeland Security for counterdrug assistance under 10 U.S.C. 284, including in the form of construction of fences along the southern border of the United States.
(relisted after the Oct. 9 conference)

Returning Relists

National Football League v. Ninth Inning, Inc., 19-1098
Issues: (1) Whether an agreement among the members of a joint venture on how best to distribute the venture’s jointly created core product may be condemned under the Sherman Act without requiring the plaintiff to establish that defendants harmed competition in a properly defined antitrust market; and (2) whether, notwithstanding the Supreme Court’s decision in Illinois Brick Co. v. Illinois, antitrust damages claims may be brought by indirect purchasers who do not allege that they paid a price fixed by the alleged conspirators.
(relisted after the Sept. 29 and Oct. 9 conferences)

Mckesson v. Doe, 19-1108
Issue: Whether the First Amendment and the Supreme Court’s decision in NAACP v. Claiborne Hardware Co. foreclose a state law negligence action making a leader of a protest demonstration personally liable in damages for injuries inflicted by an unidentified person’s violent act there, when it is undisputed that the leader neither intended, authorized, directed, nor ratified the perpetrator’s act nor engaged in or incited violence of any kind.
(relisted after the Sept. 29 and Oct. 9 conferences)

Wolf v. Innovation Law Lab, 19-1212
Issues: (1) Whether the Department of Homeland Security policy known as the Migrant Protection Protocols is a lawful implementation of the statutory authority conferred by 8 U.S.C. § 1225(b)(2)(C); (2) whether MPP is consistent with any applicable and enforceable non-refoulement obligations; (3) whether MPP is exempt from the Administrative Procedure Act requirement of notice-and-comment rulemaking; and (4) whether the district court’s universal preliminary injunction is impermissibly overbroad.
(relisted after the Sept. 29 and Oct. 9 conferences)

Taylor v. Riojas, 19-1261
Issues: (1) Whether, when the unconstitutionality of government officials’ conduct is obvious, that suffices to render the violation clearly established, as the U.S. Courts of Appeals for the 6th, 9th and 11th Circuits have recognized in analogous cases, or whether there must also be binding precedent directly on point, as the U.S. Court of Appeals for the 5th Circuit held below; (2) whether government officials are entitled to qualified immunity so long as there is no prior precedent recognizing the unconstitutionality of an identical fact pattern, as the U.S. Courts of Appeals for the 5th and 8th Circuits have held, or whether prior precedent can clearly establish a constitutional violation despite some factual variation, as the U.S. Courts of Appeals for the 3rd, 4th, 7th, 9th, 10th and 11th Circuits have held; and (3) whether the judge-made doctrine of qualified immunity, which is not justified by reference to the text of 42 U.S.C. § 1983 or its common law backdrop and which has been demonstrated not to serve its policy goals, should be narrowed or abolished.
(relisted after the Sept. 29 and Oct. 9 conferences)

Rogers County Board of Tax Roll Corrections v. Video Gaming Technologies Inc., 19-1298
Issue: Whether a generally applicable state ad valorem tax, as assessed against personal property owned by a non-Indian, out-of-state corporate entity and leased to a tribe for use in its casino operations, is preempted by the Indian Gaming Regulatory Act and the Supreme Court’s “particularized inquiry” balancing test from White Mountain Apache Tribe v. Bracker, when the tax does not infringe on any federal regulatory purpose contained in the IGRA, the tax does not interfere with any tribal sovereignty interests and the tax supports relevant and important government interests, such as law enforcement, schools and health services.
(relisted after the Sept. 29 and Oct. 9 conferences)

Bovat v. Vermont, 19-1301
Issue: Whether a police officer can access “semiprivate” areas within a home’s curtilage to conduct an investigation without a warrant.
(relisted after the Sept. 29 and Oct. 9 conferences)

Shinn v. Kayer, 19-1302
Issue: Whether the U.S. Court of Appeals for the 9th Circuit violated 28 U.S.C. § 2254’s deferential standard, and employed a flawed methodology that the Supreme Court has repeatedly condemned, when it granted habeas relief based on a de novo finding that a Sixth Amendment violation had occurred.
(relisted after the Sept. 29 and Oct. 9 conferences)

Dailey v. Florida, 19-7309
Issue: Whether the Florida Supreme Court’s analysis of Chambers v. Mississippi, employing a factor-based approach that has been embraced by some courts but rejected by most others, was unconstitutional.
(relisted after the Sept. 29 and Oct. 9 conferences)